APPENDIX G. Payment Device Processing Agreement ( PDPA )

Transcription

1 APPENDIX G Payment Device Processing Agreement ( PDPA )

2 Appendix G PAYMENT DEVICE PROCESSING AGREEMENT This Payment Device Processing Agreement ( Agreement ) is entered into as of the Effective Date by and among the entity identified below as the Merchant (together with any affiliated entities listed on Schedule B to the Agreement), referred to collectively as the Merchant, Key Merchant Services, LLC, a joint venture between Elavon, Inc. ( Elavon ) and Key Bank, National Association ( Member ), as further designated on the EVTA-2 Work Order and includes the following Terms of Service (the TOS ) and all Schedules and other attachments to the Agreement, each of which is incorporated in full by this reference. The Agreement governs the Merchant s receipt and use of the Processing Services. PAYMENT DEVICE PROCESSING SERVICES ELECTED BY MERCHANT. Merchant elects the following Payment Device Processing Services as described in the Agreement (including all applicable Schedules) and subject to the additional terms and conditions of the applicable provisions of the Merchant Operating Guide (the MOG ): TOS, General Provisions and the MOG Schedule A, Schedule of Fees (replaced by Appendices D and F to the Contract) Substitute Form W-9 (required) Payment Device Processing Services Available to Merchants Generally (check desired Processing Services): Credit Card Services Debit Card (signature-based) Services Debit Card (PIN-based) Services Bill Payment (Pinless Debit) Services DCC Services (not available)** Wireless Services Contactless Services Schedule D, Electronic Gift Card Services (not available)** Schedule E, Electronic Check Services (not available)** Schedule J, Processing Services for Convenience Fees Schedule K, Enterprise Billing Solutions Services (not available)** Schedule N, Internet PIN-Based, Debit Card Services (not available)** Payment Device Processing Services Available to Merchants Operating in Certain Merchant Categories (check desired Processing Services): EBT Services (not available)** Hospitality Services (not available)** No Signature Required Program Services (not available)** Schedule F, Petroleum Services (not available)** Schedule I, Government/Public Institution Service Fees Payment Device Processing Services Available to Merchants Operating in Certain Jurisdictions (check desired Processing Services): Schedule G, Processing Services in Canada (not available)** Schedule H, Processing Services in Puerto Rico (not available)** ** Services marked not available are not available to State Agency Authorized Users. Non-State Agency Authorized Users may contract for such services with KMS/Elavon directly. Page 2

3 Appendix G TERMS OF SERVICE In the event that any of the terms or conditions contained in this Agreement are found to conflict with any of the terms of conditions contained in the Contract entered into between the State of New York and Key Merchant Services pursuant to RFP #22419 for Electronic Value Transfer Services (the Contract ), the terms and/or conditions of the Contract shall prevail. The provisions herein are intended to be in addition to the terms of the Contract. Section A - General Provisions Applicable to All Services 1) DEFINITIONS; RULES OF CONSTRUCTION. Capitalized terms used in the Agreement and in any applicable Schedule shall have the meanings ascribed to such terms in the Glossary set forth in Section B of this TOS or in such Schedules. All Schedules are expressly incorporated in their entirety and made a part of the Agreement. Captions in the Agreement and in the attached Schedules are for convenience only and do not constitute a limitation of the terms in the Agreement. Singular terms shall include the plural, and vice versa, unless the context otherwise requires. The word day shall mean calendar day, unless specifically stated otherwise. In the event of a conflict between the terms of Section A - General Provisions, and any applicable Schedule, the terms of the applicable Schedule shall prevail, subject to the order of precedence contained in Section II.2 of the Contract. 2) ACCEPTANCE OF PAYMENT DEVICES. Merchant shall determine in accordance with the Payment Network Regulations and the Agreement which types of Payment Devices and Processing Services it will agree to accept as a form of payment from its Customers by selecting the applicable Processing Services on page 1 of the Agreement and/or on the appropriate Schedule. The terms and conditions for the acceptance of the applicable Payment Devices and Merchant s use of the Processing Services are set forth in the Agreement and in the Merchant Operating Guide (the MOG ), incorporated herein by this reference and located at our website ort.do, a current copy of which is included as Appendix H to the Contract. Each Schedule to the Agreement shall be governed by the TOS and the applicable provisions of the MOG, as well as by the terms set forth in the Schedule. 3) TRANSACTIONS. a) Merchant Compliance. Merchant must comply with all the requirements under the Agreement. Merchant must also comply with the procedures set forth in the MOG and any other guides, manuals, or rules provided in writing by Elavon from time to time. b) Settlement of Transactions. Subject to the other provisions of the Agreement and subject to Merchant s compliance with the terms of the Agreement and the Payment Network Regulations, Elavon and Member will process Transactions daily, and if Merchant maintains its DDA with Member, provisional credit for Transactions may be available as soon as the next banking day after the banking day on which Elavon and Member process the Transactions. To the extent required, Merchant authorizes and appoints Elavon or Member to act as Merchant s agent to collect Transaction amounts from the Customer, the Issuer or the Customer s financial institution. i) Deposits. Merchant agrees that the Agreement is a contract of financial accommodation within the meaning of the Bankruptcy Code, 11 U.S.C. Section 365, as amended from time to time. Merchant acknowledges that its obligation to Elavon and Member for all amounts owed under the Agreement arises out of the same transaction as Elavon s and Member s obligation to deposit funds to the DDA and such amounts are owed in the ordinary course of business. ii) Provisional Credit. Merchant acknowledges that all credits for funds provided to it are provisional and subject to reversal in the event that Elavon and Member do not receive payment of corresponding settlement amounts from the Payment Networks. Merchant further acknowledges that all credits are subject to adjustments for inaccuracies and errors (including rejects) and Chargebacks in accordance with the Contract and this Agreement and the Payment Network Regulations, whether or not a Transaction is charged back by the Issuer or Customer. If Merchant has selected direct debit or net settlement, Merchant authorizes Elavon or Member to initiate reversal or adjustment (debit or credit) entries and to initiate or suspend such entries in accordance with the Agreement as may be necessary to grant or reverse provisional credit for any Transaction. Further, Elavon may delay Merchant-issued Cardholder credits for up to five (5) business days for accounting verification. Cardholder credits issued by Merchant to PIN-Debit Cards will not be subject to this delay. iii) Chargebacks. Merchant agrees to accept for Chargeback, and will be liable to Elavon and Member in the amount of any Transaction disputed by the Cardholder or Issuer for any reason under the Payment Network Regulations. Merchant authorizes Elavon and Member to offset from funds due Merchant (if net-billing is selected by the Authorized User Page 3

4 Appendix G under the Contract) or to debit the DDA (if direct debit is selected by the Authorized User) or the Reserve Account for the amount of all Chargebacks. Merchant will fully cooperate with Elavon and Member in complying with the Payment Network Regulations regarding all Chargebacks. iv) Original Transaction Receipts. Under no circumstances will Elavon or Member be responsible for processing returns, refunds, or adjustments related to Transactions not originally processed by Elavon and Member. c) DDA and ACH Authorization. Merchant will establish and maintain with Member (or with another ACH participating financial institution) one or more DDAs to facilitate payment for Transactions. Merchant will maintain sufficient funds in the DDA to accommodate all Transactions contemplated by the Agreement and all returns, adjustments, fines, penalties, and assessments from the Payment Networks. Elavon and Member have the right to delay, within their reasonable discretion, crediting the DDA with funds related to Transactions in order to investigate any Transactions related to suspicious or fraudulent activity or funds for Transactions for which Elavon or Member have not received funding from the applicable Payment Networks. Elavon and Member will endeavor to investigate or process any delayed Transactions expeditiously and will endeavor to notify Merchant if any Transactions are delayed for more than forty-eight (48) hours. Elavon has the right to rely upon written instructions submitted by Merchant requesting changes to the DDA. In the event Merchant changes the DDA, the ACH debit and credit authorization established hereunder, if any, will apply to the new account and Merchant shall provide Elavon and Member such information regarding the new DDA as they deem necessary to effect payments to and from the DDA as provided under the Agreement. It may take Elavon up to ten (10) business days after Elavon s receipt of a written notice from Merchant to reflect in its system any change to Merchant s DDA. d) Depository Institution. Merchant authorizes its depository institution to grant Elavon and/or Member access to any and all information or records regarding the DDA reasonably requested by Elavon and/or Member to credit the DDA and to otherwise exercise their rights under the Agreement with respect to the DDA. e) Actions. Merchant will not make any claims against (i) Elavon or Member for any authorized action they take against the DDA or Reserve Account in accordance with the Contract and this Agreement, and (ii) the depository institution at which Merchant maintains its DDA for acting in accordance with any instruction from Elavon and/or Member regarding the DDA authorized under this Agreement, in each case except to the extent such actions are attributable to Elavon s or Member s negligence, willful misconduct, or their breach of the Contract or this Agreement. 4) SECURITY INTERESTS, RESERVE ACCOUNT, RECOUPMENT, AND SET-OFF. a) Security Interests. Deleted. b) Reserve Account. i) Establishment. Elavon may establish a Reserve Account in the Reserve Amount upon the occurrence of a Reserve Event for the purpose of providing security and a source of funds to pay Elavon and Member for any and all amounts that may be owed by Merchant hereunder. Elavon and Member shall have sole control of the Reserve Account. ii) Reserve Amount. The Reserve Amount is equal to the aggregate dollar value of: [(average % credits to processing volume during the same period + average % Chargebacks to processing volume during the same period) multiplied by four] multiplied by [average monthly processing volume] plus [one month s average fees] plus [# days delayed delivery multiplied by the average day s processing volume]. For purposes of this calculation, the number of days delayed delivery means the number of days between the date on which the Cardholder s Payment Device is charged and the date the product is shipped to the Cardholder (if the goods are being shipped) or the date the Cardholder receives the product or service. Further, for purposes of this calculation, Elavon will determine, in its sole reasonable discretion, the applicable period considering factors such as Merchant s Transaction volume and seasonality. (A) Reserve Event State Agency Authorized Users. The following will constitute Reserve Events for State Agency Authorized Users: (a) fraudulent activity in any monthly period that equals or exceeds one percent (1%) of Merchant s average monthly volume over the preceding twelve (12) month period, (b) Chargebacks in any monthly period that equal or exceed one percent (1%) of the total dollar value of incoming items to Elavon, (c) Elavon s reasonable belief that a Merchant not approved by Elavon to engage in delayed delivery transactions has accepted deposits but has not delivered the goods or services, (d) the commencement of a Bankruptcy Proceeding by or against Merchant, and (e) the occurrence of a material adverse change in Merchant s financial condition, Page 4

5 Appendix G (B) Reserve Event Non-State Agency Authorized Users. The following will constitute Reserve Events for non-state Agency Authorized Users: (a) fraudulent activity in any monthly period that equals or exceeds one percent (1%) of Merchant s average monthly volume over the preceding twelve (12) month period, (b) Chargebacks in any monthly period that equal or exceed one percent (1%) of the total dollar value of incoming items to Elavon, (c) Elavon s reasonable belief that a Merchant not approved by Elavon to engage in delayed delivery transactions has accepted deposits but has not delivered the goods or services, (d) the commencement of a Bankruptcy Proceeding by or against Merchant, (e) termination of the Agreement for any reason or the occurrence of an event listed in Section (A)(12)(b)(ii)(B) or (C) giving Elavon or Member the right to terminate the Agreement, (f) nonpayment of amounts owed by Merchant to Elavon or Member, (g) fines or assessments imposed or reasonably expected to be imposed by the Payment Networks, (h) the occurrence of a material adverse change in Merchant s financial condition, (i) assignment of the Agreement by, or a change in control of, Merchant without Elavon s consent, and (j) revocation, termination or non-renewal of any guaranty, indemnity agreement, letter of credit or any other Alternate Security provided in connection with the Agreement, if applicable. iii) Funding. Elavon and Member may fund the Reserve Account (in each case up to the Reserve Amount) by any one or more of the following means. (A) Elavon and Member may require Merchant to deposit funds into the Reserve Account; (B) Elavon and Member may debit the DDA if authorized; and/or (C) Elavon and Member may deposit into the Reserve Account funds they would otherwise be obligated to pay Merchant. iv) Use of Funds in Reserve Account. Elavon or Member may, without notice to Merchant, apply funds in the Reserve Account against any outstanding amounts Merchant owes under the Agreement. Also, Elavon or Member may debit the Reserve Account to exercise their rights under the Agreement including, without limitation, their rights of set-off and recoupment to collect any amounts due to Elavon or Member. Further, Merchant agrees that Elavon or Member may be required to send funds in a Reserve Account to a third party in response to a tax levy or other court order. v) Termination of Reserve Account. Funds held in the Reserve Account shall remain in the Reserve Account, and shall be used only to pay amounts due to Elavon and Member (except as otherwise provided in the Agreement), until the Merchant has paid in full all amounts owing or that may be owed under the Agreement, including all Chargebacks, returns, adjustments, fees, fines, penalties, assessments from the Payment Networks and any other payments due under the Agreement. In no event shall Merchant be entitled to a return of any funds remaining in the Reserve Account before two hundred seventy (270) days following the effective date of termination of the Agreement. Notwithstanding the foregoing, if Elavon and Member determine that the Reserve Event that gave rise to the establishment of the Reserve Account has been sufficiently cured, Elavon and Member may, in their sole discretion, terminate the Reserve Account and/or release funds from the Reserve Account prior to the termination of the Agreement. vi) Alternate Security. In lieu of or in addition to establishing and funding a Reserve Account, Elavon may, in its sole and absolute discretion, accept an alternative form of security ( Alternate Security ) for the purpose of providing a source of funds to pay Elavon and Member for any and all amounts owed by Merchant. Elavon retains the right, at any time, to reject Alternate Security previously accepted by Elavon and/or to require funding of a Reserve Account so that the amount of funds held in a Reserve Account, taken together with amounts represented by any Alternate Security accepted by Elavon, equal the Reserve Amount. c) Merchant acknowledges that in the event of a Bankruptcy Proceeding, in order for Merchant to provide adequate protection under Bankruptcy Code Section 362 to Elavon and/or Member hereunder, Elavon and Member may require the creation of a Reserve Account and either of them shall have the right to offset against the Reserve Account for any and all obligations Merchant may owe to Elavon and Member, without regard to whether the obligations relate to Transactions initiated or processed before or after the initiation of the Bankruptcy Proceeding. d) Remedies Cumulative. The rights conferred upon Elavon and Member in this section are not intended to be exclusive of each other or of any other rights and remedies of Elavon and Member under the Agreement, at law or in equity. Rather, each and every right of Elavon and Member under the Page 5

6 Appendix G Agreement, at law or in equity is cumulative and concurrent and in addition to every other right. 5) PROCESSING SERVICES; FEES; OTHER AMOUNTS OWED; TAXES. Elavon and Member will provide Merchant with Processing Services in accordance with the Contract and this Agreement. Merchant will compensate Elavon and Member for Processing Services as indicated in Section VI of the Contract and Appendix D, Rate Schedules. a) Fee Collection Models. Merchant will pay Elavon pursuant to the Fee Collection Model selected on the EVTA-2 Work Order form, and as further described in Section VI of the Contract and below (and for Non-State Agency Authorized Users, if no selection is made, then the Direct Debit Fee Collection Model will apply): i. Direct Debit Fee Collection Model (also called Direct ACH Debit in Section VI of the Contract). Merchant will pay Elavon and Member fees in the ordinary course of business for all Processing Services, supplies, and equipment in accordance with Appendix D of the Contract and the EVTA-2 Work Order form. Such fees will be calculated and debited from the DDA or the Reserve Account once each day or month for the previous day s or month s activity as applicable, or will be deducted from the funds due Merchant under the Agreement. ii. Monthly Net Settlement Fee Collection Model (also called Deduction Net-Billing in Section VI of the Contract). Notwithstanding any provisions of Section (A)(3)(b) or Section (A)(3)(c) to the contrary, with respect to the collection of fees by Elavon and Member, Merchant will pay Elavon and Member fees in the ordinary course of business for services, supplies, and equipment in accordance with Appendix D of the Contract and the EVTA-2 Work Order form. Such fees will be calculated daily and will be offset by Elavon and Member against amounts owed by Elavon and Member to Merchant for: (i)transaction Receipts, on the first day of each month for the prior month s activity, (ii) fees and other amounts owed to Elavon and Member pursuant Appendix D of the Contract and the EVTA-2 Work Order form that are not available or reasonably calculable as of the last day of a particular month, such amounts will be offset the following month. In the event that the funds owed by Elavon and Member to Merchant on the first day of a calendar month are insufficient to offset amounts Merchant owes to Elavon and Member for Processing Services provided during the prior month, Elavon and Member may offset any unpaid balance owed by Merchant against future amounts Elavon and Member owe or will owe to Merchant until Merchant s financial obligations are fully satisfied. iii. Invoice Fee Collection Model. Notwithstanding any provisions of Section (A)(3)(b) or Section (A)(3)(c) to the contrary, with respect to the collection of fees by Elavon and Member, Merchant will pay Elavon and Member fees in the ordinary course of business for services, supplies, and equipment in accordance Appendix D of the Contract and the EVTA-2 Work Order form. Such fees will be calculated once each month for the previous month's activity. Elavon will send Merchant an invoice reflecting the fees due, in accordance with Section VI of the Contract. iv. Convenience Fees (also called Government/Public Institution Service Fees). See Section III.13 of the Contract and Schedules I or J to this Agreement, as applicable. b) Research Deleted. c) Change of Fees. The fees set forth in the Agreement and any additional application or set up form will not be amended by Elavon for the Initial Term of the Agreement except as provided in the Contract or to pass through to Merchant increases in interchange, assessments, or fees imposed by a third party. Notwithstanding the previous sentence, the Card Processing Fees set forth in Appendix D or F may be adjusted during the Initial Term or any Renewal Term in Elavon s or Member s discretion, without further consent or agreement from Merchant, to pass through any new fees imposed upon Elavon or Member by any third parties (including any Payment Network) in connection with the Processing Services. d) Other Amounts Owed. Merchant will promptly pay Elavon or Member any amount incurred by Elavon or Member attributable to the Contract, including, without limitation, Chargebacks, returns, adjustments, fees, fines, penalties, assessments (including all fines, penalties, or assessments by the Payment Networks or any other third party as a result of Merchant s Transaction processing), and any other payments due under the Agreement. e) Taxes. Merchant is also obligated to pay all taxes and other charges imposed by any governmental authority on the goods and services provided under the Agreement excluding the income taxes attributable to Elavon or Member. If Merchant is a tax-exempt entity, Merchant will provide Elavon and Member with an appropriate certificate of tax exemption. 6) ACCURACY OF INFORMATION; RESPONSIBILITIES; LIMITATION OF LIABILITY. a) Accuracy of Information. Merchant must promptly notify Elavon in writing of any material changes to the information provided in the EVTA-2 Work Page 6

7 Appendix G Order form or otherwise in the Agreement, including, without limitation, any additional location or new facility at which Merchant desires to use the Processing Services, the form of entity, change in control, material changes to the type of goods and services provided and/or payments accepted, and how Transactions are completed (e.g., by telephone, mail, electronic commerce, or in person at Merchant s place of business). The notice must be received by Elavon at least ten (10) business days prior to the change. Merchant will promptly provide any additional information reasonably requested by Elavon. b) Responsibilities. i) Merchant Responsibilities. In addition to Authorized User s obligations in the Contract, as between Merchant, Elavon and Member, Merchant will be responsible for, and at its own expense, defend itself against any suits, claims, losses, demands or damages arising out of or in connection with any dispute with a Customer, Cardholder or any third party relating to any Transaction or any breach by Merchant of any obligation under this Agreement ( Merchant Disputes ). Merchant will not make any claims against Elavon or Member for any liabilities, claims losses, costs, expenses and demands of any kind or nature, arising out of or in connection with the Merchant Disputes, but excluding all actions to the extent attributable to Elavon s or Member s breach of the Agreement, negligence or willful misconduct. ii) Indemnity. For State Agency Authorized Users. Subject to the availability of lawful appropriations and consistent with Section 8 of the State Court of Claims Act, the State shall hold Contractor harmless from and indemnify it for any final judgment of a court of competent jurisdiction to the extent attributable to the negligence of the State or of its officers or employees when acting within the course and scope of their employment iii) Elavon Responsibilities. See Appendix B c) Limitation of Liability. Elavon and Member s Limitation of Liability is governed by Appendix B 76. d) Performance; Disclaimer of Warranties. Elavon and Member s Warranties are governed by Appendix B 72. 7) REPRESENTATIONS AND WARRANTIES; COVENANTS. a) Merchant Representations and Warranties. Merchant represents and warrants to Elavon and Member the following as of the Effective Date: i) Information. Merchant is validly existing and duly organized under the laws of the jurisdiction in which it was formed with all necessary authority, qualifications, licenses and registrations necessary to conduct its business, in all jurisdictions where Merchant conducts business, in compliance with all Laws and Payment Network Regulations. All written information provided in the EVTA-2 Work Order form or any other document submitted to Elavon or Member is true and complete and properly reflects the business, financial condition and ownership of Merchant in all material respects to the best of Merchant s knowledge. ii) Authority and Power. Merchant and the person signing the Agreement on Merchant s behalf have the power to execute and perform the Agreement. The person executing the Agreement is duly authorized to bind Merchant and each affiliated entity identified in the EVTA-2 Work Order form, to all provisions of the Agreement as if each affiliated entity had executed the Agreement, and such person is authorized to execute any document and to take any action on behalf of Merchant which may be required by Elavon to carry out the Agreement. Further, the signing and/or performing in accordance with the Agreement will not violate any Law, or conflict with any other agreement to which Merchant is subject. iii) MasterCard MATCH System and Consortium Merchant Negative File. Merchant has never been placed on the MasterCard MATCH system (formerly known as the Combined Terminated Merchant File), or been named to the Consortium Merchant Negative File maintained by Discover or, if it has, it has disclosed this fact to Elavon in writing. iv) No Litigation. There is no action, suit, or proceeding pending, or to Merchant s knowledge, threatened that would reasonably be expected to materially impair Merchant s ability to carry on Merchant s business substantially as now conducted or which would materially and adversely affect Merchant s financial condition or operations. b) Merchant Covenants. Merchant covenants the following to Elavon and Member during the Initial Term and any Renewal Term: i) Compliance with Laws and Payment Network Regulations. Merchant will comply with all Laws and Payment Network Regulations. ii) Business Use. Merchant is obtaining and using the Processing Services from Elavon and Member for business or official government purposes only and to facilitate lawful business Transactions between Merchant and its Customers. Merchant will not submit Page 7

8 Appendix G Transactions for processing to Elavon or Member for any businesses, materially different products, or methods of selling other than those set forth in the EVTA-2 Work Order form without the prior written consent of Elavon. Merchant also acknowledges that the DDA into which debits and credits are made is being used for lawful business or official government purposes only. iii) Transactions. To the best of Merchant s knowledge, all Transactions are bona fide. No Transaction involves the use of a Payment Device for any purpose other than the payment to Merchant or a return or adjustment related to such payment. No Transaction involves a Cardholder obtaining cash from Merchant unless allowed by the Payment Network Regulations and agreed to in writing by Elavon. All Transactions will be accepted at entities properly identified to Elavon and Member on Schedule B attached hereto. iv) Responsibility for Actions. Solely between the parties to this Agreement, Merchant is responsible for any breach of this Agreement by Merchant s officers, directors, employees, agents, Value Added Servicers, business invitees, and those of any other Person directly associated with Merchant s receipt of services pursuant to this Agreement, but excluding all actions or failures to act to the extent attributable to Elavon s or Member s breach of the Contract, negligence or willful misconduct. Nothing herein shall create or give to any third party any claim or right of action against Merchant. c) Elavon and Member Representations and Warranties. Elavon and Member, each on their own behalf and not on behalf of the other, represent and warrant to Merchant the following as of the Effective Date of the Agreement: i) Information. Elavon is a corporation validly existing and organized under the laws of the State of Georgia. Member is a banking association validly existing and organized in the United States. ii) Corporate Power. Elavon, Member and the persons signing the Agreement on behalf of each of them have the power to execute and perform the Agreement. The persons executing the Agreement are duly authorized to bind Elavon and Member, as applicable, to all provisions of the Agreement and such persons are authorized to execute any document and to take any action on behalf of Elavon and Member, respectively, which may be required to carry out the Agreement. Further, the signing and/or performing in accordance with the Agreement will not violate any Law, or conflict with any other agreement to which they are respectively subject. iii) No Litigation. There is no action, suit, or proceeding pending, or to Elavon s or Member s knowledge threatened, which if decided adversely would impair Elavon s or Member s ability to carry on their business substantially as now conducted or which would adversely affect Elavon s or Member s financial condition or operations. d) Elavon and Member Covenants. Elavon and Member, each on their own behalf and not on behalf of the other, covenants to Merchant the following during the Initial Term and any Renewal Term: i) Compliance with Laws and Payment Network Regulations. Elavon and Member will comply with all Laws and Payment Network Regulations including the requirements of the Payment Card Industry ( PCI ) Data Security Standard, as applicable to them and their respective systems, for the Processing Services provided under the Agreement. The Merchant may review Elavon s current PCI compliance status on the Payment Network websites as available. ii) Responsibility for Actions. Elavon and Member are responsible for any violations of this Agreement that result from the actions of or failure to act by their officers, directors, employees and agents; but excluding actions or failures to act to the extent attributable to Merchant s breach of the Agreement, negligence or willful misconduct. 8) AUDIT AND INFORMATION. a) Audit. i) Elavon or Member Audit. In the event that Elavon or Member reasonably suspects that they are subject to a financial or reputational risk due to Merchant s actions or omissions, and consistent with the Contract, Merchant authorizes Elavon and Member to perform an audit or inspection of Merchant s operations to confirm compliance with the Agreement upon reasonable advance notice and at Elavon s or Member s expense. Merchant agrees to cooperate, in good faith, with any such audit conducted by Elavon or Member. ii) Data Compromise, Security, and Payment Network Audit. In addition to Merchant s obligations under Section 13(e)(i), in the event of a known or suspected data compromise, security incident, the occurrence of suspicious activity, or otherwise if required by the Payment Networks, Merchant will obtain, at the request of Elavon, Member or any Payment Network, and submit a copy of a forensic audit from a qualified incident response assessor of the information security of Merchant s business Page 8

9 Appendix G at Merchant s expense. Merchant acknowledges and agrees that the Payment Networks have the right to audit Merchant s operations to confirm compliance with the Payment Network Regulations. b) Information. i) Authority. Merchant authorizes Elavon and Member to make, upon receipt of a Non-State Agency Authorized User s EVTA-2 Work Order form and from time to time, any business credit or other inquiries they consider reasonably necessary to review the Non-State Agency Authorized User EVTA-2 Work Order form or continue to provide Processing Services under the Agreement to Non-State Agency Authorized Users. Non-State Agency Authorized Users also authorize any Person or credit reporting agency to compile information to answer those business credit inquiries and to furnish that information to Elavon. ii) Financial Information. Upon the request of either Elavon or Member, Merchant will provide Elavon and Member audited financial statements prepared by an independent certified public accountant selected by Merchant, or if Merchant is audited by a governmental authority, then Merchant will provide financial statements from such governmental authority. Within one hundred twenty (120) days after the end of each fiscal year (or in the case of a government entity, when available), Merchant will furnish Elavon and Member, as requested, a financial statement of profit and loss for the fiscal year and a balance sheet as of the end of the fiscal year, each audited as provided above. Merchant shall also provide Elavon and Member such interim financial statements and other information as Elavon or Member may request from time to time. iii) Merchant Information. Merchant agrees that any information about Merchant or any of its principals, affiliates or agents that is provided to Elavon or Member on the EVTA-2 Work Order or otherwise legally obtained by Elavon or Member in connection with the Agreement (except for personal information as defined in N.Y. Gen. Bus. 899-aa(a), which may only be used for (A) or (B) below) may be (A) used by Elavon and Member, and their respective affiliates and agents, in order to provide the Processing Services and related functions to Merchant and to respond to any further application for services; (B) disclosed in accordance with the Payment Network Regulations, to Issuers and to the financial institution where the DDA is maintained; (C) used or disclosed in the course of any actual or potential sale, reorganization or other change to Elavon s or Member s business; (D) collected, used and disclosed as required or permitted by Law (e.g., for tax reporting or in response to a subpoena); and (E) retained for such periods of time as required by Elavon and Member to perform their obligations and exercise their rights under the Agreement. c) Customer Identification. To help the government fight the funding of terrorism and money laundering activities, federal law requires all financial institutions to obtain, verify, and record information that identifies each Person who opens an account. Accordingly, Merchant must provide certain information and identifying documents to allow Elavon and Member to identify Merchant. 9) FRAUD MONITORING. While Elavon monitors Merchant Transactions, by doing so it is not guaranteeing that fraudulent or suspicious transactions will not occur. Merchant also remains responsible for monitoring its Transactions. 10) BUSINESS CONTINUITY. a) Merchant. Merchant is solely responsible for all Transactions and Transaction Receipts until such time as the Transaction Receipts have been received and validated by Elavon. Merchant will maintain sufficient backup information and data (e.g., Transaction Receipts or detailed reporting) with respect to Transactions and will provide such information and data to Elavon or Member upon request in order to reconstruct any information or data lost due to any malfunction of Merchant s or Elavon s or Member s systems. Elavon is under no duty to recreate lost Transactions or Transaction Receipts unless such loss results from Elavon s breach of the Agreement. b) Elavon and Member. Elavon and Member are required, pursuant to federal banking regulations, to establish, maintain, and test an effective and comprehensive business continuity plan ( BCP ). Elavon and Member maintain BCPs that are commercially reasonable within the industry for the Processing Services. Elavon and Member will continue to adhere to their respective BCPs and will modify those plans from time to time to meet the objectives and requirements of their respective businesses. 11) THIRD PARTIES. a) Products or Services. Merchant may desire to use a Value Added Servicer to assist Merchant with its Transactions. Merchant shall not utilize any Value Added Servicer unless Merchant has disclosed such use to Elavon previously in writing, and unless such Value Added Servicer is fully compliant with all applicable Laws and Payment Network Regulations. Any Value Added Servicer used by Merchant must be registered with the Payment Networks prior to the performance of any contracted services on behalf of Merchant. Further, as between the parties Page 9

10 Appendix G to this Agreement, Merchant will be bound by the acts and omissions of its Value Added Servicer and Merchant will be responsible for ensuring compliance by such Value Added Servicer with all applicable Laws and Payment Network Regulations. Merchant will be responsible for any loss, cost, or expense incurred in connection with or by reason of Merchant s use of any Value Added Servicer. Neither Elavon nor Member is responsible for the Value Added Servicer, nor are they responsible for any Transaction until Elavon receives data for the Transaction in the format required by Elavon. b) Third Party Contractors. Merchant acknowledges and understands that Elavon or Member may use the services of third party service providers in connection with the performance of their non- FSP services (pursuant to Section II.4 of the Contract) obligations under the Agreement, including any Schedule to the Agreement. Except as otherwise provided in the Agreement, Elavon and Member shall be responsible for the performance of their obligations hereunder notwithstanding any use of or delegation of any responsibility to a third party service provider. 12) TERM AND TERMINATION. a) Term.. See Section I.2 of the Contract. If Merchant processes Transactions beyond the Initial Term or Renewal Term, then the terms of the Agreement shall govern such Transaction processing. b) Termination. i) By Merchant. See Appendix B 60. ii) By Elavon or Member. See Appendix B 63. In addition, Elavon or Member have the following termination rights: (A) The Agreement may be terminated by Elavon or Member immediately upon the occurrence of one or more of the following: (1) The occurrence of a material adverse change in a Non-State Agency Authorized User s financial condition. (2) The garnishment or attachment of a Non-State Agency Authorized User s deposit accounts with Member, the DDA, the Reserve Account, or any of Merchant s property in the possession of Elavon or Member. (3) The commencement of a Bankruptcy Proceeding by or against Merchant. (4) Any representation, warranty or covenant by a Non-State Agency Authorized User is false or misleading in any material respect as of the date made, or becomes false or misleading in any material respect at any time during the term of the Agreement. (5) Any Payment Network requires Elavon or Member to terminate the Agreement or cease processing transactions for Merchant. (6) Any change, not approved by Elavon, that constitutes a material change in the types of goods and services a Non- State Agency Authorized User sells or in the methods by which a Non-State Authorized User sells them, or any change that results in a Non-State Agency Authorized User s violation of Elavon s or Member s underwriting policy. (7) Assignment of the Agreement or a change in control of a Non-State Agency Authorized User without Elavon s written consent. (8) Revocation, termination or nonrenewal of any guaranty, indemnity agreement, letter of credit or other Alternate Security executed in connection with the Agreement, if applicable. The parties rights of termination under the Agreement are cumulative. A party may exercise its termination rights with respect to an individual Schedule to the Agreement or the participation of any affiliate without terminating other Processing Services or Schedules, provided that any termination of the Agreement in whole shall automatically terminate all related Processing Services and Schedules. A specific right of termination in this section shall not limit any other right of the party to terminate the Agreement or any Schedule expressed elsewhere. c) Notice of Termination. i) Notice of termination by Merchant, Elavon, or Member must be given in writing as required by Appendix B 60 and 63. Termination shall be effective on the date specified by the written notice; provided, however Merchant agrees that closing Merchant s account with Elavon may take up to thirty (30) days following Elavon s receipt of written notice of termination. In those limited instances where Merchant s account is reinstated by Elavon following termination by either Merchant or Elavon in the Initial or any Renewal Term, all of Merchant s obligations under the Agreement are likewise reinstated and will renew for successive Renewal Terms effective on the date of reinstatement. d) Action upon Termination. i) Accounts. All obligations of a party regarding Transactions processed prior to termination will survive termination. Funds related to Transactions processed prior to termination may be placed in a Reserve Account until Merchant pays all amounts Merchant owes Elavon or Member or for which Merchant is liable under the Agreement. If Merchant has Page 10

11 Appendix G selected Direct Debit or Net Settlement payment methods, then Merchant must maintain enough funds in the DDA following termination to cover all Chargebacks, returns, adjustments, fees, fines, penalties, assessments from the Payment Networks and other amounts due under the Agreement for a reasonable time, but in any event, not less than 180 days from termination. ii) Equipment. If Merchant s equipment is leased, Merchant is obligated to honor the terms and conditions of Merchant s leasing contract. If Merchant s equipment is owned or supplied by Elavon, Merchant must return all equipment to Elavon and pay Elavon any amounts Merchant owes for such equipment within thirty (30) days. iii) Early Termination Fee. Deleted. 13) COMPLIANCE WITH LAWS AND PAYMENT NETWORK REGULATIONS; MATCH AND CONSORTIUM MERCHANT NEGATIVE FILE. a) Compliance with Laws and Payment Network Regulations. Merchant, Elavon and Member agree to comply with all applicable Payment Network Regulations, including all requirements applicable to obtaining authorization for ACH debits from or charges to a consumer account, as applicable, and with any policies and procedures provided by Elavon or Member. Merchant, Elavon and Member further agree to comply with all Laws applicable to the selected Processing Services, including without limitation, Laws related to: (i) Payment Devices; (ii) electronic fund transfers; (iii) confidential treatment of information; and (iv) the Fair and Accurate Credit Transactions Act of 2003 (FACTA), including its requirements relating to the content of Transaction Receipts provided to Cardholders. Merchant will execute and deliver to Elavon and Member all documents they may from time to time reasonably deem necessary to verify Merchant s compliance with this provision. b) Privacy Laws. In addition to Section (A)(14)(b), each party hereto must take all commercially reasonable steps to protect the confidentiality of Cardholder and Transaction information and shall establish and maintain physical, technical and administrative safeguards to prevent unauthorized access by third parties to such Cardholder and Transaction information and in a manner that complies with applicable Laws, including without limitation the federal Health Insurance Portability and Accountability Act, the federal Gramm-Leach- Bliley Act, FACTA or other applicable privacy laws. c) MATCH TM and Consortium Merchant Negative File. Merchant acknowledges that Member and/or Elavon is required to report Merchant s business name and the name of Merchant s principals to the MATCH TM listing maintained by MasterCard and accessed by Visa or to the Consortium Merchant Negative File maintained by Discover, if applicable, pursuant to the requirements of the Payment Network Regulations. Merchant specifically consents to Elavon s and Member s fulfillment of the obligations related to the listing of Merchant in such databases. d) Security Program Compliance. Merchant must comply with the requirements of the Payment Card Industry (PCI) Data Security Standard (PCI DSS) including the Cardholder Information Security Program (CISP) of Visa, the Site Data Protection Program (SDP) of MasterCard, the Data Security DISC Program and the PCI DSS regulations of Discover Network, and the security programs of any other Payment Network as to which Merchant accepts a Payment Device, as applicable, and any modifications to, or replacements of such programs that may occur from time to time (collectively, Security Programs ). Upon request, Elavon will provide Merchant with the respective website links to obtain the current requirements of the Visa, MasterCard, and Discover Network Security Programs. All Value Added Servicers from whom Merchant procures services must comply with the requirements of those Security Programs. Merchant, and not Elavon or Member, is responsible for Merchant s own actions or inactions, those of Merchant s officers, directors, shareholders, employees and agents, including any Value Added Servicer. e) Data Compromise. i) Notice and Investigation. Merchant acknowledges and agrees that Cardholder data and bank account information obtained by Merchant in connection with any Transaction is the property of the financial institution that issued the Payment Device or holds the Customer s account. Merchant must notify Elavon and Member within twenty-four (24) hours (and if notice is given orally, it must be confirmed in writing within the same twentyfour hour period), if Merchant knows or suspects that Cardholder Data, Customer information, or Transaction information has been accessed or used without authorization from Merchant, Merchant s Agents or systems within Merchant s or its agent s control (a Data Incident ). The notice must include: (a) a detailed written statement about the Data Incident including the contributing circumstances, (b) the form, number and range of compromised account information, (c) specific account numbers compromised, and (d) details about the ensuing investigation and Merchant s security personnel who may be contacted in connection with the Data Incident. Page 11

12 Appendix G Merchant must fully cooperate with the Payment Networks, Elavon and Member in the forensic investigation of the Data Incident. Within seventy-two (72) hours of becoming aware of the Data Incident, Merchant must engage the services of a data security firm acceptable to the Payment Networks and/or to Elavon and Member to assess the vulnerability of the compromised data and related systems. Merchant must provide weekly written status reports to Elavon and Member until the forensic audit is complete. Merchant must promptly furnish updated lists of potential or known compromised account numbers and other documentation or information that the Payment Networks and/or Elavon and Member may request. In addition, Merchant must provide all audit reports to Elavon and Member, and such audits must be completed to the satisfaction of the Payment Networks and/or of Elavon and Member. If Merchant fails to supply the forensic audits or other information required by the Payment Networks and/or by Elavon and Member, Merchant will allow Elavon or Member to perform or have performed such audits at Merchant s expense. ii) Preservation of Records. In the event of a Data Incident, Merchant must take immediate steps to preserve all business records, logs and electronic evidence relating to the Data Incident. Merchant shall cooperate with Elavon and Member to rectify, correct and resolve any issues that may result from the Data Incident, including providing Elavon and Member with (and obtaining any necessary waivers for) all relevant information to verify Merchant s ability to prevent future data incidents in a manner consistent with the Agreement. iii) Liability for Data Incident. Without waiving any of Elavon s and Member s rights and remedies, Merchant is liable for all fraudulent transactions related to any Data Incident and all costs Elavon or Member incur as a result of such Data Incident (unless due to Elavon or Member s negligent act or failure to act) including any fees, fines, penalties and/or assessments by the Payment Networks, claims from third parties, all costs related to the notification of Cardholders or Customers and cancellation, re-issuance of Payment Devices (including underlying accounts), forensic investigation, and PCI DSS review for a report of compliance. iv) Elavon Data Compromise. If Elavon suffers a data incident and Cardholder, Customer, or Transaction information has been accessed from Elavon, its employees or agents, or systems within Elavon s control, then Elavon will follow all applicable Payment Network Regulations with respect to such data incident including providing the required reporting and forensic audits to the Payment Networks. In the event Elavon suffers a data incident and private information is disclosed, Elavon will comply with N.Y. Gen. Bus. Law 899-aa(3), as applicable. 14) USE OF TRADEMARKS; CONFIDENTIALITY; PASSWORDS. a) Use of Trademarks. Merchant may use and display the Payment Networks marks, and shall display such marks in accordance with the standards for use established by the Payment Networks. Merchant s right to use all such marks will terminate upon termination of the Agreement or upon notice by a Payment Network to discontinue such use, and Merchant must thereafter promptly return any materials displaying the marks. Merchant s use of promotional materials provided by the Payment Networks will not indicate, directly or indirectly, that such Payment Networks endorse any goods or services other than their own and Merchant may not refer to any Payment Networks in stating eligibility for Merchant s products or services. b) Confidentiality. i) Cardholder and Transaction Information. Merchant, Elavon and Member shall, at all times, protect the confidentiality of Cardholder and Transaction information in accordance with all applicable Laws and Payment Network Regulations. Merchant, Elavon and Member must maintain Cardholder and Transaction information for such time periods as may be required by the Contract, Laws and the Payment Network Regulations and thereafter destroy, in a manner that will render the data unreadable, all such media that they no longer deem necessary or appropriate to maintain. Further, Merchant, Elavon and Member must take all steps reasonably necessary to ensure that Cardholder and Transaction information is not disclosed to unauthorized parties or otherwise misused. Merchant may not retain or store magnetic stripe or CVV2/CVC2 data after authorization for record keeping or additional authorization processing. ii) Bankruptcy. In the event of failure or other suspension of Merchant s business operations, including any Bankruptcy Proceeding, Merchant must not sell, transfer, or disclose any materials that contain Cardholder or Transaction information to third parties. Merchant must: (A) Return this information to Elavon, or (B) Provide acceptable proof of destruction of this information to Elavon. Page 12

13 Appendix G iii) Confidential Information Generally. Each party shall at all times protect the other parties Confidential Information. The Receiving Party will not use a Disclosing Party s Confidential Information in any way directly or indirectly detrimental to the Disclosing Party. Each party recognizes that the disclosure or unauthorized use of Confidential Information will injure the Disclosing Party. Each party further recognizes and agrees that the injury that the Disclosing Party will suffer for any actual or threatened breach by the Receiving Party of the covenants or agreements contained herein cannot be compensated by monetary damages alone, and the Receiving Party therefore agrees that the Disclosing Party, in addition to and without limiting any other remedies or rights which it may have under the Agreement or otherwise, shall be entitled to equitable relief, including injunction and specific performance. The Receiving Party further agrees to waive any requirement for the securing or posting of any bond in connection with such equitable remedy. c) Passwords. If Merchant receives a password from Elavon to access any of Elavon s databases or services, Merchant will: (i) keep the password confidential; (ii) not allow any other entity or person to use the password or gain access to Elavon s databases or services; (iii) be responsible for all action taken by any user of the password that obtained access to the password from Merchant; and (iv) promptly notify Elavon if Merchant believes Elavon s databases or services or Merchant s information has been compromised by use of the password. If Merchant receives passwords from a third party for products or services related to Transaction processing, Merchant must protect such passwords in the manner required by such third party and be responsible any losses, costs, or expenses that arise from Merchant s use or misuse of such third party passwords. d) Proprietary Interest. Merchant has no interest whatsoever, including, without limitation, copyright interests, franchise interests, license interests, patent rights, property rights, or other interest in any services, software, or hardware provided by Elavon, unless specifically agreed to in a separate license or use agreement between Merchant and Elavon. Nothing in the Agreement shall be construed as granting Merchant any patent rights or patent license in any patent which Elavon may obtain in respect to Elavon s services, software, or equipment. Merchant will make no attempt to duplicate or otherwise ascertain the components, circuit diagrams, logic diagrams, flow charts, source and object code, schematics or operation of, or otherwise attempt to reverse engineer any of Elavon s services, equipment, or software. e) Actions upon Termination. Upon the request of the Disclosing Party or upon the termination of the Agreement, and subject to any limitations imposed by law, the Receiving Party shall promptly return all Confidential Information and all copies of such Confidential Information in the Receiving Party s possession or in the possession of its agents and/or will deliver to the Disclosing Party, destroy or irreversibly erase, as the Disclosing Party shall request, all originals and copies prepared by the Receiving Party or its agents or prepared for the Receiving Party s use containing or reflecting any Confidential Information of the Disclosing Party. In the event a dispute arises between the parties in relation to the Confidential Information (or a part thereof) or the Agreement, the Receiving Party may retain a copy of such Confidential Information (or part thereof) as, in the Receiving Party s discretion, reasonably exercised, is necessary for its defense of the dispute and its retention and use of such Confidential Information shall continue to be subject to the terms of the Agreement. f) Disclosure of Confidential Information. In the event that the Receiving Party and/or its agents become legally required or compelled (by deposition, interrogatory, request for documents, subpoena, civil investigative demand or by any similar process or court or administrative order) to disclose Confidential Information, then the Receiving Party shall provide the Disclosing Party with prompt prior written notice of such legal requirement so that the Disclosing Party may seek a protective order or other appropriate remedy and/or waive compliance with the terms of this Section 14. In the event that such protective order or other remedy is not obtained, and regardless of whether the Disclosing Party waives compliance with the terms of this Section 14, the Receiving Party agrees to disclose only that portion of the Confidential Information which the Receiving Party, as advised by the written opinion of counsel, is legally required to be disclosed and to exercise best efforts to obtain assurances that confidential treatment will be accorded such Confidential Information. 15) MISCELLANEOUS PROVISIONS. a) Entire Agreement. See Section II.2 of the Contract. b) Jurisdiction and Venue; Governing Law. Deleted. c) Exclusivity. Deleted. d) Construction. Any alteration or strikeover in the text of the Agreement or any Schedule thereto will have no binding effect and will not be deemed to amend the Agreement. The headings used in the Agreement are inserted for convenience only and will not affect the interpretation of any provision. The language used will be deemed to be the language chosen by the parties to express their mutual intent, and no rule of strict construction will be applied against any party. Page 13

14 Appendix G e) Assignability. The Agreement may not be assigned by Merchant, directly or by operation of law, without the prior written consent of Elavon, which consent will not be unreasonably withheld, and except where required by governmental reorganization or necessity. If Merchant, nevertheless, assigns the Agreement without Elavon s consent, the Agreement will be binding on the assignee as well as Merchant. Elavon will not transfer or assign the Agreement without the prior written consent of Merchant, except as provided in Appendix A 2. f) Notices. See Section VII.10 of the Contract. g) Bankruptcy. Merchant will immediately notify Elavon of any Bankruptcy Proceeding initiated by or against Merchant. Merchant will include Elavon on the list and matrix of creditors as filed with the Bankruptcy Court, whether or not a claim may exist at the time of filing.. h) Customer Contact. Merchant authorizes Elavon and Member to contact Merchant s Customers or their Issuer if Elavon or Member determines that such contact is necessary to obtain information about any Transaction between Merchant and a Customer. i) Telephone Recording. For quality assurance and training purposes Merchant authorizes Elavon to monitor and record telephone conversations at any time. The decision to record any conversation shall be solely in Elavon s discretion and pursuant to applicable Law. j) Communication with Merchant. Merchant agrees that Elavon and Member may provide Merchant with information about their services including, without limitation, information about new products and/or services by telephone and/or electronic mail. k) Amendments. Except as otherwise provided in the Agreement, amendments to the Agreement shall be in writing and signed by the parties, and approved by the New York State Office of the Attorney General and the New York State Office of the State Comptroller. Elavon and Member may amend or modify the Agreement, to the extent such changes are required by or attributable to changes in the Payment Network Regulations or other Laws, upon written notice to Merchant. Elavon or Member will inform Merchant of such a change in a periodic statement or other written notice, and such change will become effective not less than thirty (30) days following the issuance of the notice unless Merchant objects in writing within such thirty (30) day period. Notwithstanding the previous sentence, changes to fees authorized by the Agreement will be effective upon notice to Merchant, unless a later effective date is provided. l) Severability and Waiver. If any provision of the Agreement is found to be illegal or otherwise unenforceable, the invalid or unenforceable provision shall be deemed to be curtailed or revised to the extent necessary to make such provision valid and enforceable and all other provisions of the Agreement shall remain enforceable and unaffected thereby. None of the failure, the delay by any party to exercise, or the partial exercise of any right under the Agreement will operate as a waiver or estoppel of such right, nor shall such amend the Agreement. All waivers requested by a party must be signed by the waiving party. m) Independent Contractors. Elavon, Member, and Merchant will be deemed independent contractors and no one will be considered an agent, joint venturer, or partner of the other, unless and to the extent otherwise specifically provided herein. The Agreement has been entered into solely for the benefit of the parties hereto and is not intended to create an interest in any third party. n) Survival. All of the obligations of each party hereto that by their nature should survive termination or expiration of the Agreement in order to achieve its purposes, including, without limitation, Sections 3, 4, 5, 6, 7, 10, 12, 13, 14, and 15(b) of the TOS, shall so survive and remain binding upon and for the benefit of the parties hereto. o) Counterparts; Delivery. The Agreement may be signed in one or more counterparts, each of which shall constitute an original and all of which, taken together, shall constitute one and the same agreement. p) Force Majeure. See Appendix B 61. Section B - Glossary 16) ACH Rules: The NACHA Operating Rules and Operating Guidelines, which govern the interregional exchange and settlement of ACH transactions. 17) Agreement: The Payment Device Processing Agreement, including the TOS, MOG, any Schedules, attachments, exhibits, addenda, the EVTA-2 Work Order form, amendments, or additions as permitted under the terms of the Agreement. 18) Alternate Security: The security described in Section (A)(4)(b)(vi). 19) American Express: American Express Travel Related Services Company, Inc. 20) ACH: Automated Clearing House. 21) ACH Network: The funds transfer system governed by the ACH Rules. The ACH Network allows participating depository financial institutions to clear interbank entries electronically. 22) Bankruptcy Proceeding: With respect to a Person means (i) that the Person or any subsidiary of such Person shall: (a) commence a voluntary case under the Bankruptcy Code of 1978, as amended, or other federal bankruptcy laws (as now or hereafter in effect); (b) file a petition seeking to take advantage of any other applicable laws, domestic or foreign, relating to Page 14

15 Appendix G bankruptcy, insolvency, reorganization, winding up or composition or adjustment of debts or any other similar conservatorship or receivership proceeding instituted or administered by any regulatory agency or body; (c) consent to or fail to contest, in a timely and appropriate manner, any petition filed against it in an involuntary case under such bankruptcy laws or other applicable laws; (d) apply for or consent to, or fail to contest in a timely and appropriate manner, the appointment of, or the taking of possession by, a trustee, receiver, custodian, liquidator, or similar entity of such Person or of all or any substantial part of its assets, domestic or foreign; (e) admit in writing its inability to pay its debts as they become due; (f) make a general assignment for the benefit of creditors; (g) make a conveyance fraudulent as to creditors under any applicable law; or (h) take any action for the purpose of effecting any of the foregoing; or (ii) that a case or other proceeding shall be commenced against the Person or any subsidiary of such Person in any court of competent jurisdiction, or through any regulatory agency or body, seeking: (a) relief under the Bankruptcy Code of 1978, as amended, or other federal bankruptcy laws (as now or hereafter in effect) or under any other applicable laws, domestic or foreign, relating to bankruptcy, insolvency, reorganization, winding up or composition, or adjustment of debts; or (b) the appointment of a trustee, receiver, custodian, liquidator or the like of such Person or of all or any substantial part of the assets, domestic or foreign, of such Person or any other similar conservatorship or receivership proceeding instituted or administered by any regulatory agency or body. 23) Card Not Present: The processing environment where the Payment Device is not physically presented to the Merchant by the Cardholder as the form of payment at the time of the Transaction. Card Not Present includes, but is not limited to, Mail Order, Telephone Order, and Electronic Commerce Transactions. 24) Card Present: The processing environment where the Payment Device is physically presented to the Merchant by the Cardholder as the form of payment at the time of the Transaction. 25) Cardholder: (i) the individual in whose name a Payment Device has been issued; or (ii) any individual who possesses or uses a Payment Device and who purports to be the person in whose name the Payment Device was issued or who purports to be an authorized user of the Payment Device. 26) Chargeback: A Transaction disputed by a Cardholder or Issuer pursuant to the Payment Network Regulations. 27) Confidential Information: All information or items proprietary to any party to the Agreement, of which another party to the Agreement obtains knowledge or access as a result of the relationship formed as a result of the Agreement, including, but not limited to, the following types of information and other information of a similar nature (whether or not reduced to writing): scientific, technical, or business information, product makeup lists, ideas, concepts, designs, drawings, techniques, plans, calculations, system designs, formulae, algorithms, programs, software (source and object code), hardware, manuals, test procedures and results, identity and description of computerized records, identity and description of suppliers, customer lists, processes, procedures, trade secrets, know-how, marketing techniques and material, marketing and development plans, price lists, pricing policies, and all other financial information. 28) Convenience Fee: A fee charged by Merchant for an added convenience to the Cardholder for the use of a Payment Device in a Transaction in accordance with the Payment Network Regulations. 29) Credit Card: A card or device associated with a revolving line of credit that may be used to purchase goods and services from Merchant or to pay an amount due to Merchant. A Credit Card includes any of the following cards or devices that are associated with a line of credit extended to the Person to whom the card or device is issued: (i) a Visa card or other card or device bearing the symbol(s) of Visa U.S.A., Inc. or Visa International, Inc. (including Visa Gold cards); (ii) a MasterCard card or other card or device bearing the symbol(s) of MasterCard International Incorporated (including MasterCard Gold cards); (iii) a Discover Network card or other card or device bearing the symbol(s) of Discover Network; or (iv) any card or device bearing the symbol of any other Credit Card Association. 30) Credit Card Associations: (i) Visa.; (ii) MasterCard; (iii) American Express; (iv) Discover Network; (v) Diners; (vi) JCB; and (vii) any other organization or association that hereafter contracts with Elavon and/or Member to authorize, capture, and/or settle Transactions effected with Credit Cards or signature-based Debit Cards issued or sponsored by such organization or association, and any successor organization or association to any of the foregoing. 31) Customer: A client of Merchant who elects to conduct a payment Transaction with Merchant through presentation of a Payment Device (including a Cardholder). 32) Debit Card: A card or device bearing the symbol(s) of one or more EFT Networks or Credit Card Associations, which may be used to purchase goods and services from Merchant or to pay an amount due to Merchant by an electronic debit to the Cardholder s designated deposit account. A Debit Card includes (i) a card or device that bears the symbol of a Credit Card Association and may be used to conduct signature-based, offline debit Transactions; and (ii) a card or device that bears the symbol of an EFT Network and can be used to conduct PIN-based, online debit Transactions. 33) Demand Deposit Account (DDA): The commercial checking account at a financial institution acceptable to Elavon and Member designated by Merchant to facilitate payment for Transactions, Chargebacks, Page 15

16 Appendix G returns, adjustments, fees, fines, penalties, assessments from the Payment Networks and other payments due under the Agreement. 34) Diners: Diners Club International Ltd. 35) Disclosing Party: The party providing the Confidential Information to the other party directly or indirectly (via one or more third parties acting on behalf of and at the direction of the party providing its Confidential Information). 36) Discover: DFS Services LLC. 37) Discover Network: The payment network operated and maintained by Discover. 38) EBT Card: A card utilized for electronic benefits transfers. 39) ECS Association: Visa (in its operation of the Visa POS Check Service), NACHA and any regional ACH association or network, the Federal Reserve (in its processing of ACH entries or Demand Drafts or other legal replacements or substitutes for a Paper Check, including under the Check Clearing for the 21 st Century Act or under applicable provisions of the Uniform Commercial Code), and any other organization or association used by Elavon and/or Member in connection with the ECS that is hereafter designated as an ECS Association by Elavon from time to time. 40) EFT Networks: (i) Interlink Network Inc., Maestro U.S.A., Inc., STAR Networks, Inc., NYCE Payments Network, LLC, PULSE Network LLC, ACCEL/Exchange Network, Alaska Option Services Corporation, Armed Forces Financial Network, Credit Union 24, Inc., NETS, Inc., and SHAZAM, Inc.; and (ii) any other organization or association that hereafter authorizes Elavon and/or Member to authorize, capture, and/or settle Transactions effected with Debit Cards, and any successor organization or association to any of the foregoing. 41) Effective Date: The date set forth in the signature block of Elavon on page 1 of the Agreement. 42) Elavon: As applicable, Key Merchant Services, LLC, a joint venture between Key Bank, National Association and Elavon, Inc., a Georgia corporation, and any affiliate or subsidiary of Elavon, Inc. that provides Processing Services to a Merchant related to Transactions. Elavon is a registered member service provider of each Member. Elavon may also be referred to as Servicer in the Agreement, the MOG or other documents provided to Merchant in connection with the Processing Services. 43) Electronic Check Services (ECS): The service offering by Elavon pursuant to which Transactions effected via an ACH Payment Device are presented for clearing and settlement by or through an ECS Association. 44) Electronic Commerce Transaction: A Transaction that occurs when the Cardholder uses the Internet to make a payment to a Merchant. 45) Electronic Gift Card (EGC): A special stored value card provided by Merchant that is redeemable for merchandise, services or other Transactions. 46) Excessive Activity: The occurrence, during any monthly period, of Chargebacks and/or Retrieval Requests in excess of one percent (1%) of the gross dollar amount of Merchant s Transactions or returns in excess of two and one-half percent (2.5%) of the gross dollar amount of Transactions. 47) Interchange: The clearing and settlement system for Visa, MasterCard and, where applicable, Discover Credit Cards and Debit Cards, where data is exchanged between Elavon and the Issuer through the applicable Payment Network. 48) Issuer: The financial institution or other entity that issued the Credit Card or Debit Card to the Cardholder. 49) JCB: JCB International Co., Ltd. 50) Laws: All applicable local, state, and federal statutes, regulations, ordinances, rules, and other binding law in effect from time to time. 51) Mail Order/Telephone Order (MO/TO) Transaction: For MO, a Transaction that occurs when the Cardholder uses the mail to make a payment to a Merchant and for TO, a Transaction that occurs when the Cardholder uses a telephone to make a payment to a Merchant. 52) MasterCard: MasterCard International Incorporated. 53) Member: The sponsoring Member designated on the Contract signature or on a particular Schedule hereto, as applicable. Any Member may be changed by Elavon at any time and the Merchant will be provided notice of same. 54) Merchant: The entity set out in the first page of the Agreement and each Authorized User of the Contract. 55) EVTA-2 Work Order form: The application form attached hereto as Appendix F of the Contract and any additional document containing information regarding Merchant s business that is submitted to Elavon and Member in connection with Merchant s application for Processing Services, including documents submitted by Merchant as a part of the bid process, if applicable. 56) Merchant Operating Guide (MOG): Elavon s operating manual that prescribes rules and procedures governing Transactions and Merchant s use of the Processing Services. The MOG may be amended from time to time by Elavon in its sole discretion, which amendments will be effective upon notice to Merchant. 57) NACHA The Electronic Payments Association: The national association that establishes standards, rules, and procedures governing the ACH Network, including the ACH Rules. 58) Payment Device: Any device or method used for the purpose of obtaining credit or debiting a designated account including a Credit Card, Debit Card, and any other financial transaction device or method, including an Electronic Gift Card, check (whether converted into electronic form or used as a source document for an electronic fund transfer), EBT Card, stored value card, smart card, or other device created to be used for the purpose of obtaining credit or debiting a designated account, that is now or hereafter effected through Transactions with Merchants. Page 16

17 Appendix G 59) Payment Network: Any Credit Card Association, EFT Network, ECS Association, governmental agency or authority, and any other entity or association that issues or sponsors a Payment Device. 60) Payment Network Regulations: Individually and collectively, as the context may dictate, all rules and operating regulations of the EFT Networks, Credit Card Associations and ECS Associations, and all rules, operating regulations, and guidelines for Transactions issued by Elavon from time to time, including, without limitation, all amendments, changes, and revisions made thereto from time to time. 61) Person: Any individual, firm, corporation, business trust, partnership, governmental agency or authority, or other entity and shall include any successor (by merger or otherwise) of such entity. 62) POS Device: A terminal, software or other point-of-sale device at a Merchant location that conforms with the requirements established from time to time by Elavon and the applicable Payment Network. 63) Processing Services: The Payment Device processing services and other related products and services received by Merchant pursuant to the Agreement. 64) Receiving Party: The recipient of Confidential Information from the other party directly or indirectly (via one or more third parties acting on behalf of and at the direction of the other party). 65) Reserve Account: The account established pursuant to Section (A)(4). 66) Reserve Amount: The amount established pursuant to the calculation set forth in Section (A)(4). 67) Reserve Event: The events designated in Section (A)(4). 68) Retrieval Request: A request initiated by a Cardholder or Issuer that requires the Merchant to produce a legible copy of the Cardholder s signed Transaction Receipt within a specified period of time. 69) Servicer: See Elavon. 70) TOS: These Terms of Service and all additions, amendments, modifications and replacements to the TOS, as applicable. 71) Transaction: Any action between a Cardholder using a Payment Device and a Merchant that results in activity on the Cardholder s account (e.g., payment, purchase, refund, or return). 72) Transaction Receipt: The paper or electronic record evidencing the purchase of goods or services from, or payment to, a Merchant by a Cardholder using a Payment Device. 73) Value Added Servicer: Any entity that stores, processes, transmits or accesses Payment Device data or Transaction data on behalf of Merchant or that provides software to Merchant for transaction processing, storage, or transmission, except to the extent such services are performed by the entity in its capacity as an agent of Elavon performing Elavon s obligations under the Agreement. 74) Visa: Visa U.S.A., Inc. Page 17

18 Appendix H APPENDIX H Merchant Operating Guide ( MOG )

19 Appendix H Placeholder for Merchant Operating Guide

20 APPENDIX I Government/Public Institution Service Fees (Schedule I to the PDPA)